United States District Court, Eastern District of New York
October 1, 2002
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), PLAINTIFF
ACUSPORT CORPORATION; ELLET BROTHERS, INC., RSR MANAGEMENT COMPANY, AND RSR GROUP, INC., INDIVIDUALLY AND ON BEHALF OF SIMILARLY SITUATED ENTITIES. ET AL., DEFENDANTS. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), PLAINTIFF V. AMERICAN ARMS, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Jack B. Weinstein, United States Senior District Judge:
Plaintiff seeks an injunction, claiming that defendants, producers and
distributors of guns, have created a nuisance by their methods of sale.
See NAACP v. Acusport Corp., ___ F. Supp.2d ___ (E.D.N.Y. Sept. 23,
2002); NAACP v. Acusport Corp., ___ F. Supp.2d ___ (E.D.N.Y. Sept. 18,
2002). Funds to help abate are also sought. The case is set for trial on
November 18 at 10:00 a.m with
an advisory jury. See Fed.R.Civ.P. 39(c);
Fed.R.Civ.P. 16. The jury will be consulted on the issue of liability of
the defendants and, if liability is found, on the scope of the injunctive
relief necessary to abate the nuisance. A written questionnaire will be
used in selecting the jury. See Transcript of Conference of Sept. 9,
2002, NAACP v. Acusport (Nos. 99 CV 3999; 99 CV 7037) (E.D.N.Y. 2002).
Federal Rule of Civil Procedure 39(c) provides that in any case in
which there is no right to a trial by jury the court may, on its own
initiative, try any issue with an advisory jury.
A. Right to a Trial By Jury
The Seventh Amendment preserves the right to a trial by jury in suits
at common law. U.S. Const. amend. VII; see also Fed.R.Civ.P. 38(a). This
right applies to suits analogous to common law actions recognized in 1791
at time of the ratification of the amendment; it does not apply to suits
analogous to 18th century equity cases. See Tull v. United States,
481 U.S. 412, 417 (1987). On the development of equity, see generally In
re Joint Eastern & Southern Districts Asbestos Litigation v. Falise,
878 F. Supp. 473 (E.D. & S.D.N.Y. 1995), and authorities there
cited: e.g., Julius Goebel, Jr., Cases and Materials on the Development
of Legal Institutions (1946); John R. Kroger, Supreme Court Equity,
1789-1835, and the History of American Judging, 34 Hous. L. Rev. 1425
(1998); Frederic W. Maitland, Equity, Also the Forms of Action at Common
Law (1929); 8 James Wm. Moore et al., Moore's Federal Practice § 38
App.102 (3rd ed. 2002); 1 John Norton Pomeroy, A Treatise on Equity
Jurisprudence (1881). See also N.Y. Jud. Law § 140-b.
An injunction is an equitable remedy; actions solely for injunctions do
not require trial by jury. See, e.g., Reich v. Tiller Helicopter
Services, Inc., 8 F.3d 1018, 1032 (5th Cir. 1993); Wilson v. Bailey,
934 F.2d 301, 305 n. 4 (11th Cir. 1991); Rodriguez v. Munoz, 808 F.2d 138,
142-43 (1st Cir. 1986); 8 James Wm. Moore et al, Moore's Federal Practice
§ 38.10[a][iii] (3rd ed. 2002). Actions to enjoin a public or a
private nuisance and for the recovery of costs incurred in abatement are
equitable. See In re Debs, 158 U.S. 564, 587-93 (1895); Mugler v.
Kansas, 123 U.S. 623 (1887); Conner v. City of Santa Ana, 897 F.2d 1487,
1493 (9th Cir. 1990); United States v. Wade, 653 F. Supp. 11, 13 (E.D.
Pa. 1984); 8 Moore, supra, § 38.30. As noted in In re Debs:
The jurisdiction of the court of chancery with
regard to public nuisances is founded on the
irreparable damage to individuals, or the great
public injury which is likely to ensue. Indeed, it
may be affirmed that in no well-considered [sic]
case has the power of a court of equity to interfere
by injunction in cases of public nuisance been
denied, the only denial ever being that of a
necessity for the exercise of that jurisdiction
under the circumstances of the particular case.
158 U.S. 564, 592 (1895)
There is no right to a non-jury trial. A party may not insist upon a
bench trial. See Beacon Theaters v. Westover, 359 U.S. 500, 510, 511 n.
17 (1959); Fed.R.Civ.P. 39(c).
B. History and Purpose of the Advisory Jury
Reliance on advisory juries can be traced to the English Chancery
Court. See 8 Moore, supra, § 39.40. The chancellor in equity had
the right to convene an advisory jury "to have its `conscience
enlightened'." American Lumbermens Mut. Casualty Co. of Ill. v. Timms
& Howard, Inc., 108 F.2d 497, 500 (2d Cir. 1939), quoting Vosburg
Co. v. Watts, 221 F. 402, 408 (4th Cir. 1915). This power is codified in
Federal Rule of Civil Procedure 39(c).
In addition to being specifically authorized under the Federal Rules,
advisory juries constitute a fundamental element of the American legal
system. See generally 9 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure. Federal Rules of Civil Procedure §
2335 (1995); 8 Moore, supra, § 39.40. They are authorized in almost
every state, pursuant to the state rules of civil procedure or the
judge's traditional equitable powers. See N.Y. C.P.L.R. 4212 (Consol.
2001); Ala. R. Civ. P. 39(c)(2002); Alaska R. Civ. P. 39(c)(2002); Ariz.
R. Civ. P. 39(m) (2002); Ark. R. Civ. P. 39(c)(2002); Cal. R. Ct. 377
(2002); Colo. R. Civ. P. 39(c) (2002); Gladstone v. Commercial Services
of Perry, Inc., 1999 WL 608679 at *1 (Conn. Super. Ct. 1999); Del.
Super. Ct. R. Civ. P. 39(c) (2002); D.C. R. Civ. P. 39(c) (2002); Vista
Centre Venture v. Unlike Anything, Inc., 603 So.2d 576, 578-79 (Fla.
Dist. Ct. App. 1992); Alta Anesthesia Associates of Georgia, P.C. v.
Gibbons, 537 S.E.2d 388, 391 (Ga. Ct. App. 2000); Haw. Rev. Stat. §
635-12(b) (2001); Idaho R. Civ. P. 39(c)(2002); In re S.G., 677 N.E.2d 920,
928 (Ill. 1997); Ind. R. Trial P. 39(B) (2002); Kan. Civ. P. Code Ann.
§ 60-239 (West 2001); Ky. R. Civ. P. 39.03 (Baldwin 2001); Me. R.
Civ. P. 39(d)(2002); Fine v. Cohen, 623 N.E.2d 1134, 1137 (Mass. App.
Ct. 1993); Mich. Ct. R. 39(D)(1) (2002); Minn. R. Civ. P. 39.02 (2002);
Miss. R. Civ. P. 50 cmt. (2002); Mo. R. Civ. P. 73.01 (2002); Mont. R.
Civ. P. 39(c)(2002); Synacek v. Omaha Cold Storage Terminals, Inc.,
526 N.W.2d 91, 94 (Neb. 1995); Nev. R. Civ. P. 39(c) (2002); Lussier v.
N.E. Power Co., 584 A.2d 179, 182 (N.H. 1990); N.J. R. Ct. 4:35-2
(2002); N.M. R. Civ. P. 1-039(B)(2002); N.C. R. Civ. P. 39(c)(2002);
N.D. R. Civ. P. 39(c)(2002); Ohio R. Civ. P. 39(C)(2002); Butcher v.
McGinn, 706 P.2d 878, 880 & n. 5 (Okla. 1985); Or. R. Civ. P.
51(D) (2002); Twitty v. Minnesota Mining & Mfg. Co.,
16 Pa. D. & C. 4th 458, 464 (1993); R.I. R. Civ. P. 39(c)(2002);
S.C. R. Civ. P. 39(c) (2002); S.D. R. Civ. P. 15-6-39(c) (2002); Tenn. R.
Civ. P. 39.03 (2002); Matter of S.J.C., 533 S.W.2d 746, 747 (Tex. 1976);
Utah R. Civ. P. 39(c)(2002); Vt. R. Civ. P. 39(c) (2002); Va. Code Ann.
§ 8.01-336 (Michie 2001); Wash. Sup.Ct. Civ. R. 39(c) (2002); W. Va.
R. Civ. P. 39(c) (2002); Wis. Stat. § 805.02(2002); Wyo. R. Civ. P.
39(c) (2002). But see Weltzin v. Nail, 618 N.W.2d 293, 301 (Iowa 2000)
(refusing to recognize the usefulness of the advisory jury procedure);
Md. R. Civ. P. 2511(d) (disallowing advisory juries).
C. Use of an Advisory Jury
The decision to utilize an advisory jury where there is no right to a
jury is entirely discretionary. See Glanzman v. Schaffer, 252 F.2d 333,
334 (2d Cir. 1958). It is said to be not subject to review on appeal. See
Mallory v. Citizens Utilities Co., 342 F.2d 796, 797 (2d Cir. 1965);
Major v. Phillips-Jones Corp., 192 F.2d 186, 189 (2d Cir. 1951).
Advisory juries are particularly useful in cases in which "there are
special factors . . . which suggest that a jury composed of members of the
community would provide the Court valuable guidance in making its own
findings and conclusions." Skoldberg v. Villani, 601 F. Supp. 981, 982
(S.D.N.Y. 1985). Because advisory juries permit community participation
and may incorporate the public's views of morality and changing common
law, their use is particularly appropriate in cases involving
community-based standards. See, e.g., Birnbaum v. United States,
436 F. Supp. 967, 988 (E.D.N.Y. 1977) (using an advisory jury to aid in
the determination of whether the distress suffered was of the sort that
would be experienced by reasonable people under the circumstances and the
extent of compensation needed), aff'd in relevant part, 588 F.2d 319 (2d
Cir. 1978); State ex rel. Leis v. William S. Barton Co., 344 N.E.2d 342,
351 (Ohio App. 1975) (discussing the use of an advisory jury in light of
community based obscenity standards); McNary v. Carlton, 527 S.W.2d 343,
348 (Mo. 1975) (ordering the use of an advisory jury in light of
community based obscenity standards). See generally Note, Practice and
Potential of the Advisory Jury, 100 Harv. L. Rev. 1363, 1371-76 (1987).
Views on important issues impinging on national public policy may be
obtained from advisory juries. See, e.g., Marcus v. Iowa Public
Television, 97 F.3d 1137, 1138 (8th Cir. 1996) (action concerning
injunction of a public television broadcast of political debates in a
congressional election where the station excluded minor-party
candidates); Kaniff v. United States., 2002 WL 370210 (N.D. Ill. 2002)
(suit for intentional infliction of emotional distress and false
imprisonment as a result of an extensive customs search on a suspicion of
drug smuggling); Andrade v. United States, 116 F. Supp.2d 778 (W.D. Tex.
2000) (case arising out of the storming of the Branch Davidian compound
in Waco, Texas by agents of the Bureau of Alcohol, Tobacco, and Firearms
and the Federal Bureau of Investigation); Birnbaum v. United States,
436 F. Supp. 967 (E.D.N.Y. 1977) (action against the C.I.A. for opening
and inspecting first class mail), aff'd in relevant part. 588 F.2d 319
(2d Cir. 1978); see also In re Agent Orange Product Liability
Litigation, 580 F. Supp. 1242, 1256 (E.D.N.Y. 1984) (stating that the
court would "probably request an advisory jury").
Commonly advisory juries provide aid in determining whether a tort or
other violation of the law has occurred. They have been used to assist in
a court's determination of whether a public nuisance exists. For
example, in a claim to enjoin the operation of a landfill, a South
Carolina court convened a jury to advise on whether the landfill
constituted a public nuisance by virtue of its location and method of
operation. Neal v. Darby, 318 S.E.2d 18 (S.C. 1984). Advisory juries have
also been employed in actions alleging private nuisance. See, e.g.,
Carroll v. Hurst, 431 N.E.2d 1344 (Ill.App. Ct. 1982) (private nuisance
claim against landowner for maintaining a junkyard on his property); Town
of Hokes Bluff v. Butler, 404 So.2d 623 (Ala. 1981) (suit against city
alleging that a proposed sewer lagoon was a private nuisance); Rode v.
Sealtite Insulation Mfg. Corp., 88 N.W.2d 345 (Wis. 1958) (private
nuisance suit for offensive smoke, gases, particles, and odors against
the owner of a local manufacturing plant).
They have been helpful as an aid to the court in determining the
appropriateness of injunctive relief. See, e.g., Marcus v. Iowa Public
Television, 97 F.3d 1137 (8th Cir. 1996) (advisory jury asked to assess
whether the harm done to an Iowa Public Broadcasting network by enjoining
the broadcast of political debates featuring the Republican and
Democratic candidates for Congress would outweigh the benefits to
plaintiffs, third party candidates, and registered voters). There is no
reason to deny a court which has empaneled an advisory jury for help on
the question of liability the benefit of the jury's judgment on the
appropriateness and scope of the relief to be granted. Such juries may be
useful to the court in determining the form of relief. Frequently they
have been asked to determine the amount of damages with or without
injunctive relief. See, e.g., Alexander v. Gerhardt Enterprises, Inc.,
40 F.3d 187 (7th Cir. 1994); Ragin v. Harry Macklowe Real Estate Co.,
801 F. Supp. 1213 (S.D.N.Y. 1992); Birnbaum v. United
436 F. Supp. 967 (E.D.N.Y. 1977), aff'd in relevant part, 588 F.2d 319
(2d Cir. 1978).
D. Public Nuisance
A public nuisance in New York "consists of conduct or omissions which
offend, interfere with or cause damage to the public in the exercise of
rights common to all in a manner such as to offend public morals,
interfere with use by the public of a public place or endanger or injure
the property, health, safety or comfort of a considerable number of
persons." Copart Industries, Inc. v. Consolidated Edison Co. of New York,
41 N.Y.2d 564 (1977) (internal citations omitted).
IV. Application of Law to Facts
Plaintiff seeks injunctive relief in the form of restrictions on the
marketing and distribution of handguns. The demand that defendants supply
funds to abate the nuisance is ancillary to the primary issue; it does
not affect the equitable nature of the case. See 8 Moore, supra, §
38.30; Teamsters v. Terry, 494 U.S. 558, 571 (1990) (citing Tull v.
U.S., 481 U.S. 412, 424 (1987)) (monetary relief "incidental to or
intertwined with injunctive relief" may be deemed equitable); United
States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa.) (recovery of costs
incurred in abating a nuisance "is in the nature of equitable
restitution"). The monetary relief sought by plaintiff is not
compensatory or punitive in nature, and thus is incidental to the
injunctive remedy sought. There is no right to a trial by jury in this
Even when accepting the aid of an advisory jury, the court will make
its own independent findings of fact and conclusions of law as required
by Federal Rule of Civil Procedure 52(a). See, e.g., DeFelice v. American
Int'l Life Ins., 112 F.3d 61, 65 (2d Cir. 1997) (noting that a trial
court using an advisory jury must both make "its own factual findings and
conclusions, in reliance upon the advisory jury's verdict if the court so
chooses, and . . . explain how it arrived at those findings and
Utilization of an advisory jury is proper in the instant case, both to
advise the court on the question of whether defendant gun manufacturers
and distributors have created a public nuisance and, if so, to provide
guidance on the nature of appropriate injunctive relief. There is no
reason to deny the court in this case the benefit of the guidance of an
advisory jury on both issues in this matter since it is of large moment
to the safety of the residents of this district, plaintiff who claims
injury, and defendants, who are selling a lawful product under
substantial government regulation.
It is appropriate to take into consideration the values and standards
of the community through the use of an advisory jury in determining
whether the conduct of the defendant gun manufacturers and distributors
illegally endangers the public health, safety, and peace. The views of an
advisory jury may be "an important part of the data taken into
consideration in arriving at the court's independent conclusion."
Birnbaum v. United States, 436 F. Supp. 967, 988 (1977), aff'd in
relevant part, 588 F.2d 319 (2d Cir. 1978). This case implicates
important questions of public policy, adding weight to advice from a jury
representative of our diverse community'.
The parties will consult with each other and the court to select an
advisory jury and to instruct it on its duties.
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